Saturday, November 15, 2008

AG’s dismal record merits dismissal

NOV 15 — Wanted: Attorney-General with ability to marshal strong prosecution team and achieve some degree of success in high-profile cases.

Caveat: present holder of the position need not apply.

The inability of the Attorney-General’s Chambers in even making a prima facie case against Abdul Razak Baginda in the murder trial of Mongolian model Altantuya Shaariibuu is just the latest in a long line of setbacks that Tan Sri Abdul Gani Patail has presided over since becoming the country’s top legal officer.

Here is a sampling of his list of shame.

* The Fu Xian Juang murder trial in September 2005, where the three accused were acquitted without defence being called. High Court judge Datuk Abdul Musa said there were clear unresolved doubts and unanswered questions in the prosecution’s case. After a trial lasting 36 days and with 39 prosecution witnesses having given evidence, High Court judge Datuk Kadir Musa found that the prosecution had not brought forward any evidence which could implicate the accused in the murder and that there had been no “prima facie” case made out to warrant the defence being called to answer the charge. The prosecution had apparently omitted to call material witnesses, including the investigating officer for the case.

* Datuk Norjan Khan Bahadar murder trial in August 2004 where the accused was acquitted when High Court judge Datuk Ian Chin noted that there was little evidence to prove that the accused knew the victim.

* Noritta Samsuddin murder trial in July 2004 where the Court of Appeal judge Datuk Mokhtar Sidin noted that to establish a prima facie case, the prosecution had to prove that death had occurred, that the accused was responsible for Noritta’s death and that the act was done with the intention of causing her death. The Court of Appeal said the only fact proven was that Noritta was dead.

* The corruption case involving Tan Sri Eric Chia, the former managing director of Perwaja Steel. He was acquitted after 43 days of trial without his defence being called. The High Court judge heavily criticised the conduct of the prosecution, especially their failure to call several key witnesses who had obvious knowledge of the material elements of the case. With reference to particular key witnesses from Japan, the judge questioned whether it was the Japanese witnesses who were “reluctant” to come or “the prosecution was the one reluctant to bring them here”.

* The Altantuya Shaariibuu murder trial will also go on record as one of the longest trials in Malaysian history. After more than 150 days, Abdul Razak was cleared of abetting the murder. Two police officers have been called to enter their defence. The presiding judge said that the prosecution had not been able to make a prima facie case against Abdul Razak and had not rebutted points which he made in his affidavit.

In any other field or enterprise, such a dismal record would have merited a dismissal. Think about it.

If the Malaysian badminton team won only friendly matches but failed miserably at the Thomas Cup, All-England, Asian Games and Olympics, there would be calls for Misbun Sidek and Rexy Mainaky to step down. Or at least, both of these coaches would have offered to resign, especially if their charges failed to clear the first round of the contest.

Losing a case without the defence being called is akin to being shown the exit in the first round. It means that the courts do not believe that the prosecution has met even the minimum standard in the case.

Veteran lawyer Raja Aziz Addruse noted recently that as it is the taxpayers’ funds that ultimately pay for all criminal prosecutions, they have a vested interest in knowing how such cases, which appear to be ill-prepared, can be brought to trial.

“It is imperative that the Attorney General’s wide powers be subject to close scrutiny and not be permitted to be exercised arbitrarily. If the government is truly serious in wanting to improve and restore public confidence in the administration of justice in this country, it must be prepared to review the presently unfettered powers of the Attorney-General… There is currently no formal mechanism requiring the Attorney-General to account for his conduct in relation to prosecutions of criminal proceedings. In spite of the wide powers he wields, he has no duty to report to the prime minister, cabinet or Parliament. There has been no call for him to account for the failure of a number of high-profile prosecutions, which commenced with much fanfare but ended up being a waste of funds.”

Raja Aziz and others believe that there should be a move to limit the powers of the AG in Malaysia, noting that he is both chief legal adviser to the government as well as public prosecutor.

This dual role opens him up to a conflict of interest situation.

The Malaysian Insider has learnt that moves to limit the powers of the AG have met with some resistance in the Cabinet and from the AG himself.

And it is unlikely that Prime Minister Datuk Seri Abdullah Ahmad Badawi — with a full plate of reforms to push through before March — will be inclined to use whatever goodwill and power he has left to re-examine legislation covering the AG’s powers in Malaysia.

But he still has the power to hire and fire. Few Malaysians will blame him for appointing a new AG to restore some confidence back in the system.